UT (Tax & Chancery) UT/2019/0000122 - [2025] UKUT 00124 (TCC)

[the mutuality test] The servant agrees that in consideration of a wage or other remuneration, he will provide his own work in the performance of some service for his master;

[the control test] He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master;

[the inconsistency test] the other provisions of the contract are consistent with its being a contract of service.

Personal service: the contract would oblige Mr Mantides to provide his own work and skill. It would be a contract for his personal service. It is a pointer towards employment.

Control: Mr Mantides would be subject to a measure of control by the hospital. It would not be control of all aspects of his work but some of his activities would be dictated in part by the hospital or to some degree supervised by it.

He would be obliged to conduct the sessions in the mornings or the afternoons specified in the rota; he would have to deal with the patients on the list. This was a measure of control over what he did and when he carried out his work, but it points only weakly towards employment

He would be obliged to work in the rooms and theatres provided by the hospital. I see this however as only a weak indicator of control: those rooms were the only place his work with the hospital's patients could sensibly be conducted. A self-employed decorator is not subject to the relevant kind of control because he can only decorate the room he has contracted to paint.

Mr Mantides's work would not be closely supervised: he was not told how to deal with outpatients or how to operate. But in the case of an expert professional this does not seem to me to be a factor which points strongly away from the existence of employment. That is because the work of a professional employee will normally be overseen only "at a distance" by others, so that when problems arise corrective action is taken. I accept that there would be an accumulation of feedback from the other staff which would enable some monitoring of his work. The automatic referral of cancer patient management to the multidisciplinary team provided some measure of the kind of oversight which may in these circumstances be regarded as control.

Taking these factors together I conclude that, although tight control was not exercised over what Mr Mantides did, the hospital would be entitled to exercise sufficient control to pass the irreducible minimum test in Ready Mixed Concrete. But overall I do not consider that the level of control points strongly towards employment.

Mutuality: there would in my view be sufficient mutuality of obligation to satisfy this condition. There would be an obligation to work and obligation to pay for the work done. There would be no obligation on either party to work or provide work or pay after the end of the contract nor would there be an absolute obligation on the part of the hospital to provide 10 half day sessions per week during the period of the contract. Those latter factors cast some doubt on whether this would have been an employment contract, but I have found it likely that the hospital would have been under a duty to use reasonable endeavours to provide those sessions during the period of the contract, and that, when taken with the obligations to work and to pay, is, in my view is sufficient to satisfy the requirement for mutuality and points towards employment.

During 2013/14 Mr Mantides’ services were provided through GML to three hospitals [The appellant was also engaged by Royal Shrewsbury Hospital in 2013-14]. The successive provision of services to different clients may point to the carrying on of a business on one’s own account. The more engagement the stronger the pull: in Hall v Lorimer Mr Lorimer worked for 20 engagers under engagements often lasting no more than a day: that was a pointer to being in business on his own account. Mr Mantides’ three longer engagements do not point to self employment.

Had the hospital sent Mr Mantides batches of patients to be seen and dealt with in his own consulting rooms and operating theatre, furnished with his own equipment and helpers, that would have been a strong pointer towards self-employment. But given the circumstance that what was plainly required by the hospital was only his skill and expertise applied to patients who came to the hospital and the fact that patients’ records would be held on the hospital computer system, I find the fact that he used the hospital’s equipment and helpers points only weakly towards employment.

Mr Mantides would bear the risk that his contract terminated early (albeit in my judgement on some notice) and of having to find new work. He would also bear the risk that the number of hours he worked each week would be less than 37½ (although that risk would be mitigated by the hospital’s obligation to use reasonable endeavours to provide 10 sessions a week). He would negotiate his rates of pay. He would bear the costs of training and complying with GMC registration requirements and of travel and accommodation when away from home. Conversely he would receive the benefit when he worked longer hours. These factors point only weakly to self-employment: most are risks borne by a salaried employee.

HMRC suggest that if he were engaged directly he would not need to bear the cost of insurance since he would be covered by the NHS indemnity scheme. However it seemed to me that the indemnity scheme applied only to employees of the NHS, and the notice explaining the scheme indicated that self employed doctors could not benefit from it. Thus only if he were employed would the absence of this cost point towards employment. Given that the MMH contact required GML to carry insurance I think that the better resolution of this circle is to assume that the direct contract also required insurance cover and that this cost would be borne by Mr Mantides. I do not think however that this adds greatly to the strength of the pointer towards self employment.

The instructions to "carry on as usual" in the Locum Booking Confirmation may indicate some integration with the hospital organisation as did the fact that Mr Mantides did some on call work at RBH, but I do not think that it could be said that Mr Mantides was part and parcel of the hospital's organisation. He neither trained nor managed others, and he would attend only one regular meeting. This consideration points weakly to employment.

I find that the degree of control that would actually be exercised over Mr Mantides is a neutral factor. In practice it appeared that he was told when and where but not how to work.

I have found it likely that the contract was terminable at least a week's notice. That is not an indication of self-employment.

The lack of any employee benefits points away from employment. Although the rate of pay was said to include holiday pay that was nevertheless only an element of pay for hourly work. It was not pay for not working.

Taking all these factors together and standing back I conclude that had Mr Mantides' services been provided under a contract with RBH he would have been an employee (both on the income tax and the NI tests).

In my judgement the hypothetical contract between MMH and Mr Mantides would have contained the following terms:

it would have been for a fixed term;

it would be terminable early on one day's notice on either side;

MMH would pay Mr Mantides the agreed rates per hour worked.

Mr Mantides would attend the morbidity and mortality meetings.

There would be no entitlement to holiday pay, sickness pay or pension benefits.

The circumstances of Mr Mantides's work for MMH differ in three material respects from those of his work for RBH:

In other respects, the circumstances of the MMH engagement would be the same as those of the RBH engagement, and I reach the same conclusion as to the import of the other relevant factors as I do in relation to RBH. But standing back and looking at those factors together with the three noted above I find that the balance lies on the side of self-employment (both as regards the income tax and the NI tests).